By Capt. A.K. Bansal
Master is a qualified seafarer in command of a merchant ship. Under common law, the ship’s register evidences this, plus her nationality, port of registry and mortgages, if any. Master is obliged to produce it on demand and declare her nationality at all times.
A ship has two legal personalities:
- In Rem, i.e. the Res — a ship as a thing of value.
- In Personam, i.e. a ship as a person like us.
She can do wrong, incur liabilities and be held responsible.
Collision is a typical example where the ship herself is responsible in law to make reparations. She can be held liable for causing pollution, in addition to other remedies available to those who suffer from it. A ship can have contractual obligations independent of her owners.
For example, a supplier or repairer has a right directly against the ship if he is not paid for supply of essentials such as stores/bunkers or for carrying out necessary repairs to her. Salvor has a right directly against the ship for salvage services rendered to her. Owners usually discharge such liabilities, but if they do not, she can be arrested and made to meet her obligations and liabilities, limited to her own value.
But a ship has no eyes, ears, hands or brain. Therefore, she functions through the Master who is her Alter Ego. His orders commit her to a collision for which she is liable. His signatures on her behalf commit her to a debt which she must pay if owners do not. A ship can also exert her rights, such as exercising lien for unpaid freight earned by her on cargo she carried.
Nothing could release a Nautical Professional from his traditional duty to answer to “SOS”, except danger to his own ship or life on board. It is an international legal duty. This is established law now, as it is reasonable to look upon the rescue as legally consistent with owners’ obligations and charterer’s use of the ship, given Master’s overriding duty to save life at sea under the Maritime Conventions Act, 1911, and Article 98 of UNCLOS.
Flag State and Coastal State Jurisdiction
In some countries, only nationals can command their ships. Till 1995, Master, Chief Officer and Chief Engineer of British ships had to be British. Today numerous Masters sail the high seas in command of foreign flag vessels.
But Master commands a ship in accordance with the Laws of the Flag State, regardless of his own nationality or the nationalities of his officers, crew and passengers. He must ensure compliance of safety, manning and other maritime, civil and criminal matters on the high seas in accordance with those Laws.
This is because under UNCLOS only the Flag State has jurisdiction over such a crime committed on a ship while she is on the high seas and the crime was committed in international waters.
Under UNCLOS 1982, sovereignty of a Coastal State extends to an adjacent belt of sea, breadth of which is twelve miles. Roadsteads normally used by ships to anchor and for cargo work are included in territorial sea. Since all countries are sovereign within their own political boundaries, it naturally follows that all ships within the political boundaries and territorial waters are subject to their jurisdiction and law.
Thus, all ships must comply with Laws of the Coastal State even while navigating through its territorial waters without entering any of her ports. Articles 18, 21 and 39 of UNCLOS stipulate how a coastal State may apply its civil and criminal laws to foreign-flag vessels, including ships in its territorial waters on innocent passage, i.e. without entering or without proceeding to or from her internal waters.
When in the territory of a foreign country, a merchant ship flies the flag of that country on her foremast to show courtesy, and to proclaim that she and all on board her submit to its Laws and jurisdiction.
Only a born American national with an American certificate can command a U.S.-flag ship. In some countries, only those who hold their own State certificates can command their ships. For example, Laws of Panama only allow Panama-flag vessels to be commanded by holders of a Panama Certificate of Competency.
Therefore, presently some Masters hold another independent Master’s Certificate, issued by the Flag State, unconnected with their national certificate. In such situations they are accountable to the State which issued that certificate by virtue of which Master was commanding the ship at the relevant time.
Indian Master on a Panama Flag Ship — Supreme Court Case
On 12.8.1986, a Panama Flag vessel sank 232 nautical miles off the Indian coast. Indian Mercantile Marine Department filed a complaint in court under Section 363 of the Indian Merchant Shipping Act, 1958, charging the Indian Master with incompetence and misconduct, and calling for cancellation of his Indian Certificate under Part XI of the Act.
Under the Indian Merchant Shipping Act, 1958, Government of India can cause a certificate of competency to be granted, but it can be cancelled only by resort to Indian courts. The Captain filed a petition that Indian Courts had no jurisdiction in this case.
The fact that he was an Indian national and also held an Indian Master’s Certificate had no relevance. He commanded a Panama-flag ship by virtue of holding an independent Master’s certificate issued by the Panama Government. The ship sank in international waters. Therefore Merchant Shipping Act, 1958 did not apply.
Held by Supreme Court of India: alleged negligence, having occurred to a foreign-flag ship, 232 nautical miles away from India, i.e. outside Indian territorial waters, the Act would not apply. MSA 1958 could apply to her only if she was within India, including Indian Territorial Waters, i.e. at a distance of twelve nautical miles from baseline. Therefore this casualty is not a shipping casualty as envisaged in Section 358 of MSA 1958.
If Master held a certificate of any other country but incompetence or misconduct occurred on board an Indian ship anywhere, the Act will apply.
Under Article 2 and Section 3 of UNCLOS and the Indian Merchant Shipping Act, all ships are under Indian jurisdiction within Indian territorial waters even while on innocent passage. Therefore the Act applies if the accident occurred within territory of India and inquiry affects Master of a foreign ship who holds a certificate from another country. In that case Indian Government may hold an inquiry and transmit a report, together with evidence, to the proper authority in that country under Section 363 of MSA 1958.
Accepted Law Endorsed by the Supreme Court
The above judgement of the Highest Court in India endorses the accepted law that:
- Under Article 91 of UNCLOS, ships shall be subject to exclusive jurisdiction of the flag State on the high seas. Therefore, if a casualty occurs on a foreign-flag vessel on the high seas, an inquiry can only be conducted by the flag State.
- Under Article 97 of UNCLOS, only the issuing Government can question the holder of a certificate of competency regardless of his nationality. Therefore, if the Master of that ship had commanded her by virtue of holding an Indian Certificate, the Flag State could transmit findings of that inquiry to the Indian Government. His competence to hold the Indian certificate and his conduct could then be questioned in Indian Courts under MSA 1958.
But in this case, he did not command that vessel by virtue of his Indian Certificate. Even if the Flag State conducted an inquiry and had found him incompetent or guilty of misconduct, they could only cancel his Panamanian certificate if they wished.
In this case, even though factually the Panama certificate was issued to the Master on the strength of his Indian Certificate of Competency, legally it was issued after Panama Government authorities or their authorised agents in India checked the Master’s sea service record, examined him and found him eligible and fit to hold an independent Panama Master’s Certificate of Competency.
Since this judgement by the Supreme Court of India, STCW convention has made certain changes. In time it may no more be possible for a seafarer to hold two independent Certificates of Competency. Panama authorities are already endorsing their Certificates with a statement that it is issued because the holder has an Indian Master’s Certificate.
Personal Liability of the Master
A Master may also be under a personal liability to any person who has a cause of action against him in accordance with general principles of the Law of Tort, under which each of us has a duty of care not to cause harm or injury to fellow man through our actions and inactions.
In the same vein, Master has a duty of care not to cause harm or injury through his acts of omission and/or commission to anyone who is on board his ship bona fide. This duty is not based on any contract or agreement between the wrongdoer and the wronged.
For example, if a stevedore labourer on the ship is injured while on board because a manhole was left open in a dark tween deck, those responsible can be held liable for their negligence. If no one else is identified, Master is accountable.
ADLER v. DICKSON
ADLER v. DICKSON is a cardinal case concerning duty of care and Master’s liability. Decided in 1955 by the Court of Appeal in England, it is good law till this day.
This was a case of personal injury suffered by a lady passenger on the P&O ship HIMALAYA who fell down and injured herself while climbing the ship’s gangway at Genoa. She sued P&O and claimed medical expenses and damages. But P&O denied liability because under clauses printed on her ticket, the passenger contracted with ship-owners, absolving them for all their acts of negligence, omission and commission including those of their employees.
She then sued the Captain and Bosun of the ship in tort and claimed that because she had a right to be on the ship by virtue of her ticket, she was entitled to safe access to and from the ship. As professionals responsible for safe running of the ship, Master and Bosun owed her a duty of care to ensure that the gangway was safe for her use.
It was further argued on her behalf that the shipping Company could not contract out of this personal obligation of Master and Bosun through the clauses on her ticket as it was outside the contract of carriage.
UK Court of Appeal upheld this argument and awarded heavy damages in a judgement against the Master and Bosun in person, for not discharging their duty of care.
Criminalisation of the Master
Master is given authority by the flag State to maintain good order on board and meet reasonable safety and pollution prevention standards set out in national and international maritime legislation, increasingly influenced by UN and IMO Conventions.
In today’s scenario, it has become a practice to hold the ship and Master criminally responsible for anything and everything under local laws. Coastal States have a range of provisions which give them powers to prosecute Masters for infringements.
Among many such laws are included rules against:
- Violations of traffic schemes and Rule of the Road, groundings and collisions with other ships and fishing vessels.
- Major and minor pollution including illegal dumping of garbage or excessive noxious emissions from their ship.
- Drugs, contraband, illegal immigrants and other Customs-related infringements.
Because of the international nature of his work under the most varied legislation in different countries, consequences of errors, omissions or negligence of crews, causing pollution, deficiency in seaworthiness and cargo-worthiness of the ship, and even financial viability of the owners, may lead to ship arrest and criminalization of the Master.
Owner can rarely be made personally accountable even for causing pollution because of the peculiar nature of a ship’s personality. It is the ship which has caused an offence or pollution and not the owner. Therefore the maximum that can happen to the owner is that he may have to abandon his ship in the hands of those who have suffered from any of it.
Before Torrey Canyon spilled nearly 90,000 tons of oil when she stranded on Sudbury Reef in 1967, there were no known cases of criminalisation of Masters of ships. In this case it was reported that Master of Torrey Canyon tried to save two hours of steaming time by taking a shorter route to avoid four days’ berthing delay. In the process the ship ran aground due to insufficient depth of water en route. Many beaches on both coasts of the English Channel were polluted, not to talk of millions of dollars worth of loss to fisheries and other civil and marine infrastructure.
In law, whether a ship sinks or is abandoned by her owners, Master is accountable as her Alter Ego not only to the coastal State but also to riparian States whose coasts may have been polluted.
Yet this Master was not criminalised for what could best be termed as his error of judgement which caused this disaster. But today, every time there is a pollution incident or a marine accident or breach of port regulations, a collision or stranding, the first action of the local authorities is usually to detain the Master.
Of late, there have been many cases of unjust treatment and detention of shipmasters without trial even when they were generally innocent. This incarceration without due legal process is a matter of grave concern. Following examples demonstrate vulnerability of Masters under foreign rules and Laws, even when they were themselves victims having lost their ships.
Protection of Seafarers
Best defence of seafarers is to ensure that international regulations, directives and required procedures are properly complied with, implemented and monitored at all times in spite of what owners may ask.
But Masters, especially those serving on substandard ships or flags of convenience, need support of the International Maritime Industry to stand up to their owners and managers, and protect their legitimate rights against unacceptable commercial pressures which compromise their professionalism for maritime safety and environmental protection.
It is imperative that the international maritime authorities discontinue the current practice of holding the shipmaster hostage whenever a maritime casualty occurs. Seafarers deserve that their liberties are not infringed illegally.
There is urgent need to design an equitable system to ensure that not only Masters but all seafarers can obtain adequate competent legal advice and assistance throughout the world free of cost. This can be done through compulsory insurance regardless of divergence of interests of owners vis-à-vis those of seafarers.